On Legal Regulation Of Administrative Monopoly On The Background Of Governing The Country By Law

Administrative monopoly is a common phenomenon in our country and has always been the difficulty and focus of the regulation of “Anti-monopoly Law”.It creates a good environment for prohibiting the administrative monopoly with the promulgating of “a Number of Major Issues of Decision About the Rule of Law ".In this context,it is very important to analyze the status quo of ruling administrative monopoly,to learn the useful experience of regulating the administrative monopoly from the world,and finally to set up a scientific and effective legal system to regulate the administrative monopoly.Governing the country by law is that managing the state affairs,economic and cultural life and social affairs through various channels and forms according to the provisions of the constitution and the laws.What the administrative monopoly is “abusing of administrative power to exclude and restrict the competition by the administrative organs and the organizations authorized by laws and regulations with the functions of managing public affairs.” According to different standards,it can be divided into specific administrative monopoly and abstract administrative monopoly or regional administrative monopoly and industrial administrative monopoly.Governing the country by law can restrain the abuse of administrative power,and anti-administrative monopoly also requires the guidance of the idea of governing the country by law.The legal system of regulation of administrative monopoly in China is mainly composed of the constitution as the commander,the “Anti-monopoly Law” and the “Administrative Procedural Law” as the mainstay and the “Opinion of Fair competition review” as an important part.The “Constitution” stipulates that China implements the basic economic institution of socialist market Economic,which is the highest legal basis of anti-administrative monopoly.But it is difficult to regulate the regional administrative monopoly and abstract administrative monopoly through “Constitution”.The “Anti-monopoly law” stipulate systematically what administrative monopoly is.But for the sake of two-tiered and three institution system of enforcement and the lack of legal responsibility,the effect of anti-administrative enforcement is limited.What is more the law does not set a clear attitude to industrial administrative monopoly.In addition to administrative enforcement,the judicial proceedings are the other important way to regulate administrative monopoly.The mainly litigation is administrative litigation,but it will be subject to government intervention.It also can bring up the civil litigation against the administrative monopoly by explicating the terms.The effect that the current legal system regulate the administrative monopoly is limited,so we can learn from foreign advanced experience.Australia and the United States formulate constitutional provisions to prohibit local protection,and the EU restricting state aid to ensure the fair competition among member states.In order to prevent the governments restricting competition through enacting laws,Australia and the EU carry out national competition review of legislation to clean up the laws and files that restrict competition.For the administrative enforcement to administrative monopoly,the comprehensive and detailed provisions about administrative monopoly and the independent and authority enforcement agencies in Russian have be a reference value to amend China's “Anti-monopoly law”.The third party access policies in Australian play an important role to break industrial monopoly.For the justice to administrative monopoly,the two-tier judicial system in America play an active role to ensure the independence of local protection lawsuit.What is more,the triple compensation of private action has a strong deterrent effect.Governing the country by law is a dynamic process.First of all,we can learn from the America and Australian that formulating the constitutional provisions to prohibit the local protection.We need to formulate the constitutional provisions about competition policy and improve the legal status of fair competition review system to constraint abstract administrative monopoly.Secondly,expanding the legal scope of the administrative monopoly,setting a authoritative law enforcement agency with unified law enforcement authority,and meanwhile introducing the third party access policies to break the industrial monopoly to push the revision of the “Anti-Monopoly Law”.Finally,it is also very important to enrich the anti-administrative monopoly's judicial path.Through the establishment of inter-administrative regional courts to promote the independence of the judiciary that play a role of anti-administrative monopoly.At the same time,introducing the system of the punitive damage of administrative monopoly to implement illegal subject's liability,so that the person whose interests are impaired can get compensation.